Olson v. Brenntag N. Am., Inc.

• Decision Date: 11 November 2020
• Docket Number: 190328/2017
• Citation: 132 N.Y.S.3d 741 (Table),69 Misc.3d 1214 (A)
• Parties: Donna OLSON and Robert Olson, Plaintiffs, v. BRENNTAG NORTH AMERICA, INC., Johnson & Johnson, Johnson & Johnson Consumer, Inc., et al., Defendants.
• Court: New York Supreme Court

69 Misc.3d 1214 (A)

132 N.Y.S.3d 741 (Table)

Donna OLSON and Robert Olson, Plaintiffs,

v.BRENNTAG NORTH AMERICA, INC., Johnson & Johnson, Johnson & Johnson Consumer, Inc., et al., Defendants.

190328/2017

Supreme Court, New York County, New York.

Decided on November 11, 2020

Levy Konigsberg, LLP, New York, NY (Jerome H. Block, Renner K. Walker, and Alexandria Awad of counsel), and Maune Raichle Hartley French & Mudd, LLC, New York, NY (Christian Hartley, Suzanne M. Ratcliffe, and Margaret Samadi of counsel), for plaintiffs.

Patterson Belknap Webb & Tyler LLP, New York, NY (John D. Winter, Jonah M. Knobler, and Thomas P. Kurland of counsel), and Kirkland & Ellis LLP, Washington, DC (Robert "Mike" Brock of counsel), for defendants Johnson & Johnson and Johnson & Johnson Consumer Inc.

Gerald Lebovits, J.

This motion arises from jury verdicts entered in an asbestos-related tort action. As the action stood at the time of trial, plaintiffs, Donna Olson and her husband, Robert Olson, brought claims against defendants Johnson & Johnson and Johnson & Johnson Consumer, Inc. (collectively, J & J), for injuries the Olsons suffered as a result of Ms. Olson's developing pleural mesothelioma

. The Olsons have contended that Ms. Olson's mesothelioma stems from her use of talcum-powder products manufactured and sold by J & J.

The question whether J & J is liable for the Olsons' claimed injuries was tried to a jury over the course of 14 consecutive weeks in 2019. Following the liability phase of trial (Phase I), the jury entered a verdict that found J & J liable on all claims, awarded $20 million in compensatory damages to Ms. Olson and $5 million to Mr. Olson, and determined that J & J should also be assessed punitive damages. Given the jury's verdict on punitive damages at Phase I, this court conducted a further phase of trial (Phase II), tried by the parties over two additional weeks to the same jury, regarding the appropriate amount of punitive damages to be awarded.¹ At the end of Phase II, the jury entered a verdict assessing $300 million in punitive damages against J & J (allocated between the two J & J defendants as set out on the verdict sheet).

J & J now moves under CPLR 4404 (a) to set aside the jury's verdict and award judgment in J & J's favor on the ground that the verdict was not supported by sufficient evidence (or was against the weight of the evidence). In the alternative, J & J moves under CPLR 4404 (a) for a new trial on liability and for a new trial on damages or remittitur.

J & J's request for vacatur of the verdict and entry of judgment in its favor is denied. J & J's request for vacatur of the verdict and a new trial on liability (including liability for punitive damages) is denied. J & J's request for vacatur of the jury's verdict on the amount of compensatory and punitive damages to be awarded is granted. A new trial on damages is directed unless within 30 days of service of notice of entry the Olsons stipulate to reduce the compensatory-damages awards to $13.5 million to Ms. Olson and $1.5 million to Mr. Olson, and to reduce the punitive-damages award to a total of $105 million (allocated between the two J & J defendants as set out below).

DISCUSSION

CPLR 4404 (a) provides that "the court may set aside a verdict or any judgment entered thereon and direct that judgment be entered in favor of a party entitled to judgment as a matter of law," or may order a new trial ... where the verdict is contrary to the weight of the evidence" or "in the interest of justice."

To set aside a jury verdict on sufficiency grounds and enter judgment for the moving party as a matter of law, a court must conclude that "there is simply no valid line of reasoning and permissible inferences which could possibly lead rational [people] to the conclusion reached by the jury on the basis of the evidence presented at trial," such that it would be "utterly irrational for a jury to reach the result it has determined upon." ( Cohen v. Hallmark Cards, Inc. , 45 NY2d 493, 499 [1978].) In assessing this issue, the court must consider the evidence in the light most favorable to the nonmoving party, affording that party "every inference that may properly be drawn from the evidence presented." ( Dinardo v. City of NY , 13 NY3d 872, 874 [2009].)

I. J & J's Challenge to the Evidentiary Basis for the Jury's Verdict Holding J & J Liable and Awarding Compensatory Damages

The first of J & J's many challenges to the jury's verdict in this case attacks the sufficiency of the evidence underlying the jury's finding of liability (and award of compensatory damages) against J & J. This court concludes that sufficient evidence supports the jury's liability verdict and compensatory award.

A. Sufficiency of the Evidence Supporting the Jury's Finding that J & J's Products Were a Substantial Factor in Causing Donna Olson's Mesothelioma

The jury found J & J liable on two types of products-liability claims: defective-design (sounding in both strict liability and negligence) and failure-to-warn. On each of these claims, the jury found expressly that J & J's conduct was a substantial factor in causing Donna Olson's mesothelioma

. (See Trial Transcript (Tr.) at 9517-9520 [May 21, 2019] [announcing verdict].² ) J & J contends that no rational jury could have made that finding. This court disagrees.

I. Evidence that Donna Olson was exposed to asbestos through her decades-long use of Johnson's Baby Powder and Shower to Shower

Ms. Olson applied (or had applied to her) Johnson's Baby Powder or Shower to Shower daily, from when she was approximately five years old in the late 1950s, until 2015; and she applied Johnson's Baby Powder to her daughter daily for several years when her daughter was a small child in the early 1990s. (See id. at 2215-2218 [Mar. 5, 2019].) Plaintiffs introduced several categories of evidence that, taken together, would permit a rational jury to conclude that Johnson's Baby Powder and Shower to Shower was contaminated with asbestos during this decades-long period.

First, the trial record contains numerous reports and memorandums (either generated by or sent to J & J) indicating that the talc sources J & J was using for Johnson's Baby Powder and Shower to Shower contained small—but significant—levels of asbestos. This was true of the Italian talc J & J used until 1967 (see id. at 891-893, 894-898, 901-902, 903-908 [Feb. 15, 2019]; id. at 1256-1258 [Feb. 22, 2019]; 6109-6110, 6113-6117[Apr. 17, 2019] ); and it was true of the Vermont talc J & J used with only brief interruptions between 1967 and 2003 (see id. at 830-840, 841-844, 844-848, 852-853, 858-859, 867-873; id. at 1037-1040 [Feb. 19, 2019]; id. at 1257-1258).

The record also contains memorandums from J & J's files showing that its principal talc supplier's processing and purification methods did not fully eliminate asbestos found in the raw talc. (See id. at 855-858, 860-864;id. at 7344-7347, 7363-7365 7374-7380 [Apr. 30, 2019].) Indeed, in the 1970s J & J submitted formal regulatory comments to the federal government that J & J was unaware of any process that could completely remove asbestos from talc. (See id. at 4137-4139, 4144-4145 [Mar. 25, 2019].)

Second, the record contains evidence that independent testing had found asbestos on a number of occasions, not merely in J & J's sources of raw talc, but in samples of Johnson's Baby Powder and Shower to Shower themselves, going back to the 1950s.³ (See Tr. at 874-877, 880, 880-884, 884-888, 902-903 [Feb. 15, 2019]; id. at 1060-1063 [Feb. 19, 2019]; id. at 1253-1256 [Feb. 22, 2019]; id. at 6110-6113 [Apr. 17, 2019]; Plaintiffs' Exhibit (PX) 50⁴ ; NYSCEF No. 782 at 6, 8, 22 [transcript of deposition of Dr. Alice Blount].⁵ ) The evidence reflects that senior officials at J & J were aware at least as early as 1972 that trace amounts of tremolite fibers—that is, asbestos (see Tr. at 6116-6117)—could be found in J & J talcum-powder products. (See id. at 7417-7418, 7420 [Apr. 30, 2019] ). The evidence also reflects that an examination in the early 1970s of samples of Johnson's Baby Powder for asbestiform minerals detected 0.2-0.5% tremolite (see id. at 7420-7423); and that the reaction of senior J & J scientists to this determination was that finding trace amounts of tremolite in Johnson's Baby Power was "not new" (see PX 177; Tr. at 7323-7324).⁶

The record contains testimony from plaintiffs' expert witness Dr. William Longo that his own testing of Johnson's Baby Powder and Shower to Shower detected asbestos. Dr. Longo testified that he found asbestos in nine of twelve samples drawn from J & J talcum-powder products that came from J & J's own in-house museum, at concentrations ranging from 12,000 to 63,000 asbestos fibers per gram of powder. (See Tr. at 1570-1577[Feb. 25, 2019].) Dr. Longo further testified that he found asbestos in 17 of 30 (or 60%) samples of Johnson's Baby Powder and Shower to Shower, which he had obtained from collectors, plaintiff-side law firms, and other sources. The asbestos concentrations in those samples ranged from 8,000 fibers per gram to 15,000,000 fibers per gram.⁷ (See id. at 1529-1536.)

Third, the record includes expert testimony that mesothelioma

is an extremely rare form of cancer, the presence of which alone generally signals an exposure to asbestos.⁸ (See

id. at 2038-2039, 2079-2085[Mar. 4, 2019]; id. at 2801-2803[Mar. 11, 2019]. Indeed, plaintiffs introduced a statement from a J & J media presentation that "[m]esothelioma [is] known to be exclusively caused by asbestos." (Id. at 2079-2080.)

Plaintiffs' experts testified that Ms. Olson had no known history of exposure to asbestos from other sources; and J & J does not contest that testimony now. It was also undisputed that Ms. Olson had no known exposure to the few known non-asbestos causes of mesothelioma

, either: i.e. , fibers of certain rare (and geographically specific) minerals, and radiation used to treat other forms of cancer. (See

id. at 2224-2225, 2227-2228 [Mar. 5,...